WHS charge dismissed on knockout point

Carlie is the first person many organisations call when a workplace incident occurs. Carlie is onsite immediately, giving clear advice about what steps to take in the first hours and subsequent days. Sometimes these incidents lead to coronial inquests or companies and their executives being prosecuted; all matters that Carlie assists with.

Ian is an experienced workplace lawyer specialising in employee relations, work health and safety (WHS) and coronial inquests. He provides practical and pragmatic advice to help employers effectively manage complex legal issues arising in the workplace.

The District Court of NSW has ordered that a WHS charge be dismissed and costs paid by SafeWork NSW, as the Prosecutor, after it was determined the charge was "inappropriate to the circumstances". The decision of SafeWork NSW v Rawson Homes Pty Ltd [2016] NSWDC 237 has clarified the interpretation of s 19 of the Work Health and Safety Act 2011 (NSW) (the Act).

Sparke Helmore acted for Rawson Homes, the principal contractor for a residential construction site in Orange, NSW. Rawson engaged a specialist contractor, Regal Concreting, to facilitate and pour the concrete slab for the house, and Regal sub-contracted Dagmar for the supply and operation of a concrete boom pump.

On 30 October 2013, the pump was set up by Dagmar and several employees of Regal were performing duties associated with the concrete pour. One of the outrigger support legs on the pump fractured, resulting in the uncontrolled fall of the boom, which hit and injured a Regal employee.

SafeWork charged Rawson under s 19(2) of the Act, alleging a failure to "ensure, so far as practicable, the health and safety of other persons is not put at risk from work carried out". This is distinct from the positive duty under s 19(1) "to ensure, so far as reasonably practicable, the health and safety of workers".

A not guilty plea was entered by Rawson Homes and two arguments were put forward as part of the defence:

the substantive charge could not be proven beyond reasonable doubt as the particulars of what Rawson could have allegedly done to address the risk were not reasonably practicable and, even if implemented, would not have alleviated the risk given they were relying on an expert contractor, and

Rawson was charged under the wrong section as all persons allegedly exposed to a risk indisputably met the express definition of "workers" as employees of Regal.

During the hearing, SafeWork argued that it could charge defendants under s 19(1) or s 19(2) of the Act because of the way the legislation was worded and that the phrase "other persons" was a catch-all reference to any person other than the duty holder—in this instance, being Rawson as the relevant person conducting a business or undertaking (PCBU).

It was submitted that SafeWork's interpretation of the legislation should not be accepted because:

It is more appropriate to adopt the ordinary meaning of the words. In the Act, the term "workers" is expressly defined as people at a site who undertake work, which by definition includes employees of a contractor. "Other persons" under the Act are individuals that may be at the site but not necessarily undertaking work.

Parliament implemented two subsections, one applying to workers and another to other persons. The different wording indicates the subsections serve distinct purposes and apply to specific circumstances.

If the Prosecutor's submission were accepted, s 19(1) applying to workers would be redundant and serve no purpose as s 19(2) would cover the field.

The presiding judge, Kearns J, agreed with the position advanced by Sparke Helmore and accepted that Rawson's submission allows for workers and others on workplace premises to be protected by duties owed to them under s 19 of the Act. It was also noted that this technical argument was a "knockout" point, meaning the charge was dismissed without having to consider other substantive arguments.

The decision reaffirms the strict application of legal principles of interpretation and pleading in the WHS jurisdiction, which is significant because cases brought before the courts under this section fall under the criminal jurisdiction and may carry significant penalties. It will be interesting to see whether any other proceedings commenced by SafeWork under s 19(2) of the Act may be withdrawn or similarly dismissed as a result of this decision. Indeed, this case may have far reaching consequences considering, as was the case for Rawson Homes, the applicable limitation period may have elapsed and SafeWork may be precluded from filing alternate charges.